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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 77, No. 10, October 2004

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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    Attorney Fees

    Fee Splitting - Former Associates

    Piaskoski & Assocs. v. Ricciardi, 2004 WI App 152 (filed 1 July 2004) (ordered published 25 Aug. 2004)

    This appeal raised several important issues regarding the division of fees between a law firm and a lawyer who formerly worked for the firm. Attorney Ricciardi worked for a law firm as an associate for about 15 months. After he voluntarily left the firm, Ricciardi continued to provide representation for several personal injury clients. When one of those cases resulted in a fee of nearly $230,000, Ricciardi refused the firm's request that it receive half the fee in accordance with an alleged termination agreement. The firm sued Ricciardi, and the trial court granted summary judgment in the firm's favor, finding that the parties had entered into a binding contract to split equally any contingency fees in certain enumerated cases, including this one.

    The court of appeals, in an opinion written by Judge Deininger, affirmed. First, the trial court properly granted summary judgment based on the undisputed evidence that Ricciardi and the firm had agreed to divide equally any fees on specified cases. Resolution of this issue involved the court's review of the summary judgment record and raised no novel questions of law or policy.

    Second, Ricciardi contended that such a fee-sharing contract was unenforceable because it contravened SCR 20:1.5(e), especially the requirement that any division must be "in proportion to the services performed by each lawyer[.]" Ricciardi asserted that upon his departure from the firm he assumed sole responsibility for this case, and there was no indication that an equal division was in proportion to the "services performed" by each party (¶ 18). The court held, however, that SCR 20:1.5(e) did not apply to the agreement between Ricciardi and the firm. "This was not a fee division 'between lawyers who are not in the same firm,' but a division between lawyers who were in the same firm when [the client's] representation began" (¶ 19). [Note: The court expressly declined to decide whether a violation of SCR 20:1.5 "either permits or compels a court to void a fee-sharing contract on public policy grounds." See ¶ 19 n.2.]

    In part, the court relied upon a 1994 decision and held that "as long as the issue of how to apportion fees received in the future for clients whose representation began while Ricciardi was associated with the firm remained unresolved, the parties were . . . lawyers 'in the same firm' within the meaning of SCR 20:1.5(e)" (¶ 23). The court found support for its "same firm" conclusion in other SCR provisions and in the rationale behind SCR 20:1.5(e). As to the latter, the court looked to the fact that the firm had not referred the case to Ricciardi because of his willingness to split the fee; rather, the client had "simply followed his lawyer out of the firm with whom the lawyer had been practicing when the representation arose." Furthermore, the fee was not higher because of the agreement to divide it equally. In short, the case presented none of the "ills the rules seeks to prevent" (¶ 25).

    Finally, nothing in the history of SCR 1.5 undercuts the court's conclusion. Indeed, the Wisconsin rule is taken from the ABA's Model Rules of Professional Conduct. The court noted that "in 2002, the ABA added the following sentence as part of the official commentary to Model Rule 1.5: 'Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated as a firm.' Although Wisconsin has not yet adopted this additional comment, we have no reason to believe that it does not accurately describe the intended scope of SCR 20:1.5(e)" (¶ 28) (citation omitted).

    The court also addressed two issues raised on cross-appeal by the firm. First, the trial court properly exercised its discretion when it denied the firm's untimely request to amend the complaint to include still other client files. Second, the trial court properly denied the firm's request for attorney fees. Ricciardi's defense was not frivolous and the contract contained no reference to attorney fees. Thus, under the American Rule, the firm had to bear its own attorney fees.

    Top of page

    Civil Procedure

    Amended Complaint - "Relation Back" -
    Fundamental Defect

    Bartels v. Rural Mut. Ins. Co., 2004 WI App 166 (filed 7 July 2004) (ordered published 25 Aug. 2004)

    Roy Bartels stopped to render aid at the scene of a car accident. Another person, Fox, also stopped to assist. Bartels was killed when another vehicle collided with Fox's parked car, which in turn struck Bartels. The day before the statute of limitation expired, Bartels' estate filed a complaint that alleged: 1) negligence by the driver who hit Fox's car; 2) an underinsured motorist (UIM) claim against Bartels' insurer; and 3) a UIM claim against Rural Mutual, which insured Fox's car. The estate did not allege that Fox was negligent or pursue a direct action negligence claim against Rural based on its liability coverage. Three months later, however, the plaintiffs amended the complaint to include negligence claims against Fox and Rural. The trial court granted Rural's motion to dismiss the amended complaint on the grounds that the statute of limitation had expired and that the complaint could not "relate back," because the plaintiffs had not served Rural with the original summons and complaint within 90 days of the original filing.

    The court of appeals, in a decision authored by Chief Judge Cane, affirmed. "First, the Bartelses' amended complaint did more than simply add a claim; it also added a new party, namely, Rural. However, this addition contravenes the relation-back statute, Wis. Stat. §802.09(3), and therefore vitiates Rural's statute of limitations protections" (¶ 12). "[D]espite being named in the original action, because Rural was never served in the original action, Rural could not have been a party to the original action. Therefore, by including Rural in the amended complaint, the Bartelses have added a new party" (¶ 13). By so doing, the plaintiffs contravened several requirements of Wis. Stat. section 802.09(3); namely, they failed to provide Rural with adequate notice within the "prescribed limitations period" (¶ 15).

    The plaintiffs' stratagem also failed because of the "fundamental defect" that occurred when they failed to serve Rural within 90 days of filing. "A fundamental defect deprives the circuit court of personal jurisdiction over the defendant, and renders the original pleading a legal nullity. A fundamental defect is 'fatal to the action,' warrants dismissal of the action, and may 'prevent [the plaintiff] from having his [or her] day in court'" (¶ 16) (citations omitted). "Given the nature and consequences of a fundamental defect, we conclude a fundamental defect cannot be remedied with an amended pleading. To conclude otherwise would furnish a complainant with a loophole in which the consequences of failing to follow the strictures for commencing an action are removed. In those circumstances, fundamental defects become less significant than even technical defects; they simply become incidental defects, defects that are rendered inconsequential by merely following the procedure for amending a pleading. Furnishing a complainant with an escape of this sort is not only inimical to the idea of fundamental defects, it would contravene their consequences" (¶ 17).

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    Criminal Law

    Sexual Assault of Patient or Resident of Inpatient Health Care Facility - Statute Inapplicable to Federal Facility

    State v. Powers, 2004 WI App 156 (filed 29 July 2004) (ordered published 25 Aug. 2004)

    The defendant was charged with violating Wis. Stat. section 940.225 (2)(g), which prohibits an employee of a facility or program specified in the statute from having sexual contact or sexual intercourse with a patient or resident of the facility or program. Various facilities are identified by the statute, including "inpatient health care facilities."

    The pleadings alleged that the defendant was an employee of an "inpatient health care facility," specifically, the Tomah VA Medical Center, which is operated by the U.S. Department of Veterans Affairs (VA). The defendant moved to dismiss the case, contending that only employees of inpatient health care facilities that are licensed or regulated by the Wisconsin Department of Health and Family Services are subject to prosecution under the statute cited above. The circuit court denied the motion.

    On appeal the state conceded the validity of the defendant's argument. The court of appeals agreed with the parties and therefore reversed the circuit court. In an opinion authored by Judge Deininger, the court held that an employee of a health care facility operated by the VA is not subject to prosecution for an alleged violation of section 940.225(2)(g). The Tomah VA Medical Center is neither an "inpatient health care facility" nor any other type of facility or program to which the statute applies.

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    Criminal Procedure

    Breach of Plea Agreement - Failure of Defense to Object - Ineffective Assistance of Counsel

    State v. Liukonen, 2004 WI App 157 (filed 22 July 2004) (ordered published 25 Aug. 2004)

    As part of a plea agreement, the prosecutor agreed to "cap" the amount of prison time he recommended for the defendant at a specified number of years. Although the prosecutor made the agreed-upon recommendation at the sentencing hearing, the defendant contended that he was entitled to resentencing before a new judge because the prosecutor breached the plea agreement by making comments implying that the defendant deserved a longer sentence than the one formally recommended by the state. The circuit court did in fact impose a sentence that was longer than the one recommended by the prosecutor.

    In a decision authored by Judge Lundsten, the appellate court agreed that the prosecutor breached the plea agreement. Among other things, the prosecutor argued that the defendant would be getting "a tremendous break" if the trial court went along with the prosecutor's recommended sentence. The appellate court believed that the prosecutor's comments communicated to the circuit court that the prosecutor was making the plea agreement recommendation because he was bound to do so, not because he thought it constituted an appropriate prison term.

    The court indicated that "plea agreements in which a prosecutor agrees to cap his or her sentencing recommendation and hopes the court will impose the full recommendation 'represent a fine line for the State to walk.' When making sentencing arguments in these situations, nothing prevents prosecutors from supplying information that supports a harsher sentence than the one recommended by the prosecutor" (¶ 10) (citation omitted). "Prosecutors may provide relevant negative information and, in particular, may provide negative information that has come to light after a plea agreement has been reached. However, prosecutors may not make comments that suggest the prosecutor now believes the disposition he or she is recommending pursuant to the agreement is insufficient" (¶ 11).

    The issue was waived by the defendant's failure to object to the breach at the time of sentencing. However, the appellate court remanded the case to the circuit court for further proceedings on the issue of whether defense counsel performed deficiently by failing to object to the prosecutor's comments at sentencing. The court stated that remand was necessary because the court could not determine from the record whether counsel had a strategic reason for failing to object and because the record does not disclose whether counsel consulted with the defendant about the plea breach before proceeding with sentencing.

    As explained in an earlier decision, when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend, the agreement has "morphed" into a new agreement. Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the "new" plea agreement. Even a strategically sound decision by defense counsel to forego an objection to a prosecutor's breach without consulting with the defendant constitutes deficient performance because it is tantamount to entering a renegotiated plea agreement without the defendant's knowledge or consent. See State v. Sprang, 2004 WI App 121. Further, "because counsel's deficient performance involved a breach of a plea agreement, [the defendant] is automatically prejudiced" (¶ 21) (citation omitted).

    On remand, it must be determined whether consultation occurred and whether the defendant agreed to proceed despite the breach. If neither circumstance occurred, the defendant is entitled to resentencing before a new judge regardless of whether his counsel had a valid strategic reason for failing to object to the breach.

    Unlawful Interrogation - "Impelled" Trial Testimony

    State v. Anson, 2004 WI App 155 (filed 21 July 2004) (ordered published 25 Aug. 2004)

    Anson was convicted of sexual assault. In a prior appeal, the court held that police interrogation procedures violated Anson's Sixth Amendment right to counsel and that his statements should have been suppressed. The court remanded the matter for a determination of whether there was a "link" between the inadmissible statements and Anson's decision to testify at trial, and thus whether a new trial was necessary. See 2002 WI App 270. On remand, the trial court found that there was no such link.

    The court of appeals, in an opinion written by Judge Snyder, reversed and remanded the matter for a new trial. The "ultimate issue" was whether Anson waived his right against self-incrimination when he testified. In light of the unlawful interrogation and the state's introduction of inadmissible statements, the case law (the "Harrison/Middleton" rule) required a two-part analysis. "First, the court must determine whether the trial testimony was impelled by the prosecution's wrongful use of the illegally obtained confession. If not, the court must then decide whether the incriminating statements would have been repeated in the trial testimony had the illegally obtained confession been suppressed. In other words, Anson's decision to testify and the content of his testimony are to be scrutinized" (¶ 10).

    Turning to the appropriate procedures, the court held that at an evidentiary hearing under the Harrison/Middleton rule, "the State may examine the defendant or defendant's counsel regarding the defendant's reason for testifying, and may use the entire record to meet its burden of showing that its use of an unlawfully obtained statement did not induce the defendant's trial testimony" (¶ 12).

    On the record before it, the court of appeals held that the trial court improperly exercised its discretion when it found that the inadmissible interview had not impelled Anson's trial testimony. First, the trial court "mischaracterized the inquiry" and applied the wrong legal standard. "Had Anson's inadmissible statement been properly suppressed, he had a compelling and constitutionally sound reason not to testify: the Fifth Amendment protection against self- incrimination. More importantly, he would have had the opportunity to weigh that protection against the benefits of testifying to refute legally introduced evidence" (¶ 21).

    Second, the trial court did not "explicitly identify the historical facts underpinning its decision" and occasionally referred to "facts not in evidence" (e.g., the family's "courtroom interaction") (¶ 22). Third, the trial court did not address the second part of the test, namely, "whether Anson would have repeated the incriminating statements on the stand had the California statement been properly suppressed" (¶ 23). The court of appeals found it "interesting" that the state elected not to call Anson as a witness at the evidentiary hearing or attack the credibility of his trial counsel, who testified that the inadmissible (incriminating) statements impelled Anson's decision to testify.

    In conclusion, the court succinctly stated that "[t]he competing inference, that Anson was not impelled by the State's illegal use of his statement, is unreasonable in light of the facts" (¶ 25).


    Cost of Repair - "Aftermarket" Parts

    De Ruyter v. American Family Ins. Co., 2004 WI App 162 (filed 7 July 2004) (ordered published 25 Aug. 2004)

    De Ruyter sued American Family on grounds of "breach of contract, bad faith and unjust enrichment based on American Family's proposed use of aftermarket or salvaged parts, as opposed to new, original equipment manufacturer ('OEM') parts, to repair De Ruyter's vehicle after a collision. De Ruyter alleged that American Family's policy did not contain a provision that limits its liability to the cost of non-OEM parts and that American Family intentionally conceals this limitation on benefits until after an insured has suffered a loss and a claim is made" (¶ 1).

    The circuit court dismissed the complaint for failure to state a claim. The court of appeals, in an opinion written by Judge Nettesheim, affirmed, because the policy, as a whole, sufficiently alerted a reasonable person to the insurer's intent to use non-OEM parts to restore vehicles. De Ruyter balked when the insurer sought to use a "quality replacement" bumper to repair his car, a 1997 model with 100,000 miles. "Significantly, De Ruyter does not allege that the use of a replacement part would not have restored his vehicle to its pre-collision or pre-loss condition. Based on the language of American Family's policy, a reasonable insured could have expected coverage for only the loss due to the collision, whether or not the repairs required the use of OEM parts. The insured could not reasonably have expected coverage for loss resulting from the wear and tear of the vehicle's use prior to the collision" (¶ 12).

    Nor did the policy contravene the "clear language" mandate of Wis. Stat. section 631.45: the use of appropriate non-OEM parts was not a "limitation of liability above and beyond those stated in the policy" (¶ 13). The court also rebuffed De Ruyter's contention, rooted in non-Wisconsin case law, that the policy should have used the phrase "like kind and quality." Finally, the court of appeals underscored that the language of the insurance policy controls and that insurers may not rely on Wis. Stat. section 632.28 to "create an independent basis to allow for the use of non-OEM parts when the underlying insurance contract does not provide for their use" (¶ 16).

    Autos - Loss of Value - Loss of Use

    Hillenbrand v. Hilliard, 2004 WI App 151 (filed 8 July 2004) (ordered published 25 Aug. 2004)

    The plaintiff's minivan was damaged in an accident about five months after it was purchased. The tortfeasor insurer agreed to repair or replace the vehicle, which cost about $24,500 new. About a week after the accident, the plaintiff rented a vehicle and about one month later he bought a new minivan. When the damaged vehicle was returned to him, the plaintiff sold it for $19,000. The insurer paid about $11,000 to "repair" the minivan. The issues in this case concern rulings in which the trial court denied the plaintiff's claims for loss of value and loss of use.

    As to the loss-of-value claim, the plaintiff's "basic argument is simple. He argues that the purpose of damages is to make him whole and that he has not been made whole because the value of his minivan before the accident was approximately $23,000 and the value of his minivan after it was repaired and returned to him was $19,000. American Family does not discuss whether [the plaintiff] was made whole. Instead, the insurance company argues that 'well established' case law in Wisconsin limits [the plaintiff's] damages to the cost of repairs made to his van" (¶ 13).

    In a decision authored by Judge Lundsten, the appellate court held "that when a plaintiff proves that repairs to personal property have not restored the property to its pre-injury value, and the plaintiff demonstrates that he or she has been or will be harmed by such loss in value, the plaintiff is entitled to damages for the proven lost value" (¶ 25).

    The holding carried several qualifications. "First, a particular area of law may contain an established exception to the general make-whole rule. 'The rules for measuring damages for loss of personal property are governed by a variety of concepts that attempt to make the owner whole for the loss sustained as a result of another's negligence. Economic concepts, however, limit the make-whole doctrine in order to minimize damages and avoid economic waste'" (¶ 26). "Second, we do not address what should happen if repair costs plus loss-of-value-after-repair damages exceed the fair market value of an item pre-injury. Perhaps in this scenario the availability of damages exceeding pre-injury fair market value may depend on how the decision to repair the vehicle is made. Perhaps not. We do not weigh in on the topic" (¶ 27). On the record before it, the court of appeals determined that summary judgment was inappropriate, and the court remanded the case for further proceedings.

    The court next addressed the loss-of-use claim. The circuit court had found that when the plaintiff bought the second minivan, he was no longer entitled to loss-of-use damages. The court of appeals, however, agreed with the plaintiff "that when a vehicle is repaired and returned to its owner, the relevant loss-of-use time period does not end simply because the owner decides to cope with loss of use by purchasing a vehicle" (¶ 31). Put differently, "[h]ow [the plaintiff] dealt with the loss of use of his damaged minivan was up to him. The germane question on summary judgment - or for the fact finder should that be necessary - is the amount needed to compensate [the plaintiff] for loss of use from the time of the accident to the time his minivan was repaired and returned to him" (¶ 36). The court of appeals remanded for a determination of whether there was a factual dispute on this issue.

    Judge Dykman concurred on the substantive issues but dissented from the majority's view that the plaintiff had failed to comply with the trial court's summary judgment procedure order, which required the parties to submit a "proposed finding of fact" or a stipulation. The dissent found no authority for such an order.

    Annuities - Dividends - Fiduciary Duty

    Noonan v. Northwestern Mut. Life Ins. Co., 2004 WI App 154 (filed 22 June 2004) (ordered published 25 Aug. 2004)

    The plaintiffs held annuities issued by Northwestern Mutual Life Insurance Co. (NML). In 1983 they agreed to an annuity contract amendment under which "dividends were paid on [NML's] overall financial performance measured by the return on a general account portfolio of investments" (¶ 5). In 1985 NML "changed the way it distributed dividends" by creating a "segmented account invested in short-term bonds. Owners of annuities then received a share of interest earned on the short-term bonds only" (¶ 6). The plaintiffs first learned of the 1985 change in 2000 and commenced this suit. The trial court dismissed their complaint for failure to state a claim.

    The court of appeals, in an opinion written by Judge Peterson, reversed the trial court. First, the complaint pleaded a claim for breach of contract, which was not foreclosed by the "business judgment rule." The dispute was about more than the "apportionment of the divisible surplus"; rather it was based on NML's "decision to predetermine the source of the annuities' dividend - the short-term bond fund - irrespective of the overall divisible surplus" (¶ 16). "The contracts state that annuity policyholders 'will share in the divisible surplus of the Company' and the 'share shall be determined annually and credited as a dividend.' Wisconsin Stat. §632.62(4)(b) mandates how the divisible surplus is to be determined. Every year Northwestern must (1) ascertain the surplus over required reserves and liabilities and (2) subtract necessary contingency reserves, funds for orderly growth, dividends for capital stock and sums required by prior contracts. After the surplus is determined, then and only then must Northwestern decide how to equitably apportion the surplus. Here, Northwestern made the allocation to annuity policyholders before it determined the surplus. This is contrary to the terms of the annuity contracts and the statute"
    (¶ 17).

    Second, the plaintiffs also stated a claim for breach of fiduciary duty, contrary to NML's assertion that its relationship with annuity policyholders was one of "debtor and creditor" (¶ 19). Although a "typical annuity" may be no more than a contractual relationship, the NML annuities "involve more"
    (¶ 23). NML has an obligation to act for the benefit of its policyholders, who are dependent upon its investment decisions and "are thus in an inferior position" to NML (¶ 25). The court also held that the fiduciary obligation extended to NML's officers and directors, who also were named in the lawsuit.

    Finally, the court of appeals rejected NML's contention that the claim should be denied on any of three other grounds: 1) NML argued that "primary jurisdiction" reposed in the office of the insurance commissioner, not the courts; the court held that NML's alleged breach of contract and the statute involved questions of law that fell outside the exclusive province of the insurance regulators. 2) NML also argued the statute of limitation barred the claim. The court held that NML's alleged conduct fell within the "continuing violation" rule. 3) NML's final claim was that the economic loss doctrine foreclosed the claim. The court responded that NML failed to "develop an argument" that the doctrine should extend beyond the realm of "defective products" (See ¶¶ 29-34).

    Municipal Law

    Local Government Contracts - Failure of Municipality to Ensure Prime Contractor Obtains Payment Bond - Timeliness of Claims

    Holmen Concrete Prods. Co. v. Hardy Constr. Co., 2004 WI App 165 (filed 29 July 2004) (ordered published 25 Aug. 2004)

    The village of Readstown contracted with Hardy Construction Co. for Hardy to be the prime contractor on a construction project. Although the village's contract with Hardy required the latter to obtain a payment and performance bond, the village failed to ensure that this occurred. Hardy then subcontracted with the plaintiffs to provide materials and labor on the project. Though the subcontractors performed their obligations under the agreement, the prime contractor failed to pay them and they submitted claims to the village, which paid a portion of the amount due. However, full payment was not made. The plaintiffs then sued the prime contractor and the village to recover the unpaid portion of the contracts.

    The circuit court granted the plaintiffs' motion for summary judgment against the village. It concluded that the village was responsible for damages resulting from its failure to ensure that the prime contractor had obtained a payment and performance bond under Wis. Stat. section 779.14. In so holding, the circuit court rejected the village's position that it had no duty to assure that the contractor secured a bond. The village argued that a 1997 revision of section 779.14 deleted this requirement.

    In a decision authored by Judge Dykman, the court of appeals affirmed. It concluded "that a municipality is responsible for failure to ensure that a prime contractor obtains a payment bond because the 1997 statutory revision did not remove liability for breach of this duty as explained in Cowin & Co., Inc. v. City of Merrill, 202 Wis. 614, 223 N.W. 561 (1930)" (¶ 2). The court concluded that Cowin continues to impose a duty upon municipalities to ensure that a prime contractor obtains an appropriate payment and performance bond. The court said that the policies supporting the Cowin rule remain pertinent today. "Municipal liability for failure to ensure that a contractor furnishes a proper bond protects subcontractors, taxpayers and the municipality itself" (¶ 18).

    With respect to the timeliness of the plaintiffs' claims, the court of appeals concluded that the ordinary time and filing requirements of the notice of claim statute (Wis. Stat. § 893.80) applied to the plaintiffs' claims against the village and that the plaintiffs complied with the statute. The court rejected the village's argument that the 20-day statute of limitation under section 779.15(4)(a) applied. This statute deals with construction lien claims that can be asserted against funds held by a public owner on a public project. "The lien claims statute does not apply to claims arising from the breach of a municipality's duty to require a payment and performance bond" (¶ 23).

    Protective Placements

    Requirement of Residence in Wisconsin County at Time Petition is Filed - Constitutional Challenge Based on Right to Interstate Travel

    Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant & Iowa Counties, 2004 WI App 153 (filed 1 July 2004) (ordered published 25 Aug. 2004)

    Jane is a 46-year-old woman who suffers from Wernicke's encephalopathy and is unable to handle her finances and property and to meet her basic needs. She currently resides in a nursing home in Illinois, having been placed there pursuant to an Illinois guardianship proceeding. The guardian is her sister.

    Because many of Jane's family members live in southern Grant County, Wisconsin, they want Jane to reside at the privately-owned Southwest Health Center Nursing Home in Grant County. Through the office of Grant County corporation counsel, the guardian filed a petition for guardianship and protective placement in Grant County.

    The Grant County Circuit Court signed an order for comprehensive evaluation that was directed to the Unified Board of Grant and Iowa Counties, the agency responsible for performing evaluations on individuals who are the subject of guardianships because they suffer from mental illness, developmental disability, or other incapacities. The board instead sought to have the petition dismissed, arguing that the circuit court lacked competence to proceed because Jane was not a Wisconsin resident. The circuit court granted the board's motion and the county appealed. In a decision authored by Judge Higginbotham, the court of appeals reversed.

    The question presented to the appellate court was whether the requirement of Wisconsin's protective placement statute that a proposed ward reside in a Wisconsin county at the time a petition is filed (see Wis. Stat. § 55.06(3)(c)) violates the ward's constitutionally protected right to travel. "The right to travel is not ascribed to any particular constitutional provision but is a right so elementary as 'to be a necessary concomitant of the stronger Union the Constitution created.' The right to travel protects the right of a citizen of one state to enter and to leave another state" (¶ 7) (citations omitted).

    As the court saw it, the statutes affect Jane in the following way. Her Illinois guardian wishes to place Jane in the nursing home in Grant County. Because the nursing home is a facility with 16 or more beds, the facility requires a court order protectively placing Jane there. To be protectively placed at the nursing home, the circuit court must find Jane to be incompetent. However, Jane cannot access the court to receive a protective placement order without first living in a Wisconsin county. Based on this analysis, the appellate court concluded that Jane's right to travel to Wisconsin to live at the Grant County nursing home has been unconstitutionally restricted.

    The court also rejected the board's argument that the statute is a bona fide residency requirement. "Rather, the statute prevents the County, and hence Jane, from presenting a guardianship and protective placement petition to the court and from having that court consider the petition simply because Jane is not a resident of a Wisconsin county. Wis. Stat. § 55.06(3)(c) restricts Jane's ability to access the courts for consideration of her only means to move to Wisconsin, a petition for protective placement" (¶ 19).